On petition of any interested person, an agency may issue a
declaratory ruling with respect to the applicability to any person,
property or state of facts of any rule or statute enforceable by
it. A declaratory ruling, if issued after argument and stated to
be binding, is binding between the agency and the petitioner on the
state of facts alleged, unless it is altered or set aside by a
court, but it shall not be binding on any other person. Such
ruling is subject to review before the court and in the manner
hereinafter provided for the review of orders or decisions in
contested cases. Each agency may prescribe by rule the form for
such petitions and the procedure for their submission,
consideration and disposition.

WVC 29 A- 4 - 2
§29A-4-2. Declaratory judgment on validity of rule.
(a) Any person, except the agency promulgating the rule, may
have the validity of any rule determined by instituting an action
for a declaratory judgment in the circuit court of Kanawha
county, West Virginia, when it appears that the rule, or its
threatened application, interferes with or impairs or threatens
to interfere with or impair, the legal rights or privileges of
the plaintiff or plaintiffs. The agency shall be made a party to
the proceeding. The declaratory judgment may be rendered whether
or not the plaintiff or plaintiffs has or have first requested
the agency to pass upon the validity of the rule in question.

(b) The court shall declare the rule invalid if it finds
that the rule violates constitutional provisions or exceeds the
statutory authority or jurisdiction of the agency or was adopted
without compliance with statutory rule-making procedures or is
arbitrary or capricious, or that, in the case of a rule adopted
pursuant to section five, article three of this chapter, action
under said section five was not justified.

(c) When the invalidity of a rule has been so declared, the
agency shall, within thirty days after such declaratory judgment
has been entered, acquiesce therein and modify or rescind such
invalidated rule in accord with the requirement of such
declaratory judgment unless the agency promptly, and in any event
within such thirty-day period, notifies the plaintiff or
plaintiffs of its intention to apply for an appeal to the supreme
court of appeals from such declaratory judgment pursuant to
section one, article six of this chapter. In the event such agency shall thereafter make timely application for such appeal,
the acquiescence of the agency in the invalidity of such rule
shall not be required until thirty days after timely applications
for such appeal have been refused or within thirty days after the
appeal has been dismissed or otherwise disposed of in the supreme
court of appeals by an affirmance of the judgment invalidating
said rule.

Note: WV Code updated with legislation passed through the 2016 Regular Session
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